Chan Lai and Another v. Chow Hoi-fat

HCA001809/1978

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Coram: Mr. Commissioner Bewley

Date of Judgment: 11 December 1979

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JUDGMENT

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1. Some time after 6.00 p.m. on the 24th December, 1975, the deceased, Mr. NG Kam, was crossing Castle Peak Road at a point near Mai Po Village, when he was struck by a public light bus driven by the defendant. He never regained consciousness and died soon after admission to hospital. His widow and second son bring this action under the Fatal Accidents Ordinance and the Law Amendment & Reform (Consolidation) Ordinance as administrators of his estate.

2. Evidence for the plaintiff was given by a passenger in the bus. He said he was the only passenger. Although he was sitting behind the driver, he was not able to assist the Court a great deal. Before the accident, he noticed nothing unusual and it was only when he heard the sound of the impact, that he realised there had been an accident.

3. The only effective witness as to the circumstances of the accident was the defendant himself. He said he was driving from Yuen Long towards Sheung Shui, a portion of road that is well known to him as he lives nearby. The road was dry and he was driving on dipped head lights. He stopped to let off a passenger. On resuming his journey, with a still full bus, he was in third gear and his speed was approximately 30 m.p.h. when he saw a person run out into the road from the left. This person was about 10 yards ahead of him and he braked. When he reached the middle of the road, this person 'jerked', as the defendant put it, and made as if to retreat the way he had come. Seeing this, the defendant braked more violently and swerved to the right to avoid him. Unfortunately, the pedestrian appeared to change his mind and continued across the road. He was struck by the left hand front of the public light bus, which finished up on the right hand side of the road.

4. The deceased was lying a few feet in front of the bus with his feet touching the centre line. The defendant got out of his bus and went to take a look at the injured man. He was unconscious but his breath smelt of alcohol. The police officer, who later escorted the deceased to hospital, confirms that he smelt drink on his breath. There is in evidence an agreed certificate by the Government Chemist, which states that the deceased's blood was found to contain 178 milligrams of ethyl alcohol.

5. The constable drew a sketch of the scene, which shows the public light bus on the right hand side of the road, with skid marks extending some 12 metres to the rear. The position of the bus is confirmed by the photographs taken by the police. These also show that the road at that point is straight, with no pavements on either side. It is a rural scene, with very few dwelling houses in sight.

6. Generally speaking, I found the defendant to be a witness of truth. It is difficult, perhaps impossible, to give precise answers to questions concerning time and distance after a lapse of four years. The defendant is not an educated man, but I formed the impression that he was doing his best to answer counsel's questions, albeit with a gloss in his favour. I am a little sceptical of his evidence that he was still in third gear. 30 miles an hour is a fairly high speed at which to be still in this gear on a lonely country road. On the other hand, in the circumstances it would have been perfectly proper for the defendant to have been driving at a faster speed. There is no speed limit on this road. It is not a busy road and driving conditions were good. A speed of 40 miles an hour would have been quite reasonable. It is, however, normal for defendants to minimise the speed at which they were travelling and I take this into account. The brake marks on the road make it probable that the speed of the public light bus was not greatly in excess of 30 miles per hour. Otherwise the defendant's evidence carried conviction and, in the absence of evidence to the contrary, I am satisfied that, subject to a certain amount of exaggeration as to the deceased's careless behaviour and his own alertness, it is largely true.

7. The picture that emerges is this. The defendant was driving at a normal speed - I don't think it matters whether it was 30 m.p.h. or 40 m.p.h. when he saw the deceased crossing the road in front of him. He reduced speed, but did not attempt to bring his vehicle to a halt, as he anticipated that the deceased would continue to cross the road and with time to spare. Had he done so, the accident would probably not have occurred.

8. However, when the deceased reached the middle of the road, he became aware for the first time of the fast approaching public light bus. This may or may not have been due to the face that he had been drinking. In any event, he panicked and dithered for a moment, before continuing to cross the road. By this time the defendant was on top of him and, in a vain attempt to avoid an accident, he braked as hard as he could and pulled to the right. Unfortunately the left front of his vehicle struck the deceased and knocked him to the ground.

9. At the moment of impact the defendant's vehicle was travelling at only a few miles per hour. This may be deduced from the fact that the only injuries suffered by the deceased were those to his head, from the position in which the deceased finished a few feet in front of the vehicle - and from the very minor damage to the public light bus.

10. Defence counsel concedes that there was a degree of negligence in the defendant's failure to take earlier action to avoid the deceased, when he first saw him crossing the road, but submits that by far the greater blame for the accident lay with the deceased. I agree. The deceased either omitted to take the elementary precaution of looking to see whether there was anything coming before he stepped out into the carriageway or, less probably, fatally miscalculated the proximity of the public light bus on account of his intoxicated condition. He then compounded his error by hesitating in the middle of the road and making as though to retreat. If he had looked to his right in the first instance, he could not have failed to see the defendant's headlights and should have realized that it was not safe to cross.

11. Even if the defendant had seen the deceased walking along the side of the road, he would have been under no obligation to slow down in the absence of any indication that the deceased intended to cross. In fact he did not see him at this stage, either on account of the deceased's dark clothing or because he was beyond the beam of his headlights. Mr. Leung submits that he was under a duty to proceed only at a speed at which he could stop within the limits of his vision. As authority for this proposition he quotes Baker v. E. Longhurst & Sons Ltd. ^(1). The Courts have however repeatedly held that the dictum of Scrutton L.J. to that effect does not lay down any rule of law. See Morris v. Luton Corp. ⁽²⁾. Where the defendant was negligent was in assuming that the deceased would continue to cross the road at the same rate. He did not allow for any other contingency. A prudent driver would have braked until the emergency had passed and, to this extent therefore, the defendant was negligent. Taking all the circumstances into account, I find that the defendant was 25% to blame for the accident.

12. I must now deal with the question of damages. Following Cookson v. Knowles ^(3), I split the damages under the Fatal Accidents Ordinance into two parts (a) the pecuniary loss which it is estimated the dependants have already sustained from the date of death up to the date of trial ('the pretrial loss'), and (b) the pecuniary loss which it is estimated they will sustain from the trial onwards ('the future loss').

13. The deceased had a wife and six children, three of whom were dependent at the time of his death. They are NG Sing-wah (24), who started work three years ago, NG Kim-wah (21), who was a cook at his father's building site in 1975, but I fancy earning only pocket money, and NG Siu-wah (17), who is still at school. NG Kim-wah is described as a daughter in the statement of claim, but this is an error. All three children still live at the family home in Yuen Long.

14. The deceased was a building sub-contractor, who built houses in the locality. The evidence shows that he used to build two to three houses a year for $40,000 - $100,000, depending on the size of the building. He employed a small group of bricklayers and labourers but, apart from minor tools, did not keep his own plant and equipment. It is clear that Mr. Ng had a small but steady business, which brought him a regular income.

15. Madam Chan says she received $2,500 from her husband every month. He gave her $60 a day for food and several $100 for school expenses, clothes, social outings etc. She also reluctantly admitted that she received a further $100 - $200 per month from her eldest son.

16. Madam Chan was rather vague about the details of how she spent this money. I bear in mind, however, that it is a long time ago and that she is a simple, country woman. She says she spent $30 - 40 a day on food for the family, but is unable to give a breakdown of this figure. Electricity and rice each accounted for $120 per month. She spent $80 per month on L.P. gas. She gave her young daughter $4 a day for her school expenses. The only other item of expenditure mentioned was pig feed at $500 per month.

17. Madam Chan kept between 10 - 20 pigs before her husband's death: she had to sell them all - there were 18 at the time - to pay for the funeral expenses. She used to buy them as piglets for $130 and sell them six months later for $400. She found this profitable and, in fact over the years had saved $20,000, which she used in 1973 to build their own house. If her figures are right, she was showing a profit of about $4,000 a year. I accept this. I also find that this enterprise was for the benefit of the family as a whole; the money obtained was either saved or used to subsidize family expenditure.

18. I think Madam Chan has exaggerated in respect of her other outgoings. Even if she spent the upper figure of $40 per day on food, she cannot account for more than $2,100 per month, plus expenditure on clothes and dinners, which would not have been much. At $30 per day, the figure is $300 less. Taking the money from her eldest son into account, the probability is that she was receiving approximately $1,800 per month from the deceased and I so find.

19. From this figure it is necessary to subtract the amount expended for the deceased's own maintenance and benefit. He was at home only for the evening meal on working days and Madam Chan would have spent most of the food money in respect of the children. I will deduct $100 for his food, $100 for his share of the pig feed and $100 for incidentals. The degree of dependency at death was thus $1,500 per month.

20. I make no reduction in respect of the financial aid given since the death by her sons. Mr. Pirie does not urge that I should. This is a benefit voluntarily conferred and is not a consequence of the death of the deceased, nor could it have been anticipated. It is on a par with the gift in Peacock v. Amusement Equipment Co. Ltd. ⁽⁴⁾and not deductible under the general rule.

21. It is probable that, provided he remained in good health, the deceased would have found his business increasingly profitable. There has been much expansion and prosperity in the Yuen Long area lately and a greater demand for housing. Since higher construction casts are merely passed on to the purchaser, I am entitled to assume that the deceased's income would have increased. But the cost of living has also risen. I also bear in mind that the two youngest sons are now working and, even had their father lived, would probably have contributed significantly to the pool. I don't think, however, that this would have had the effect of reducing the deceased's contribution. At his age, he would have continued to hand over the bulk of his earnings to Madam Chan. More likely, the standard of living of the family would have improved. Bearing these matters in mind, I assess the probable dependency now at $1,800. The median dependency over the past 4 years is therefore $1,650. This gives a sum of $79,200 as the pretrial loss.

22. Looking ahead, the only difference is that the girl NG Siu-wah will probably start work within the next year or two. However, I doubt if this is a factor that has any effect on the question of dependency. She is not likely to be earning much and any contribution by her would have been so small that it would have made no difference to her father's contribution.

23. The deceased's age is stated in the particulars of claim to be 58. Madam Chan says he was 57, according to his identity card. This is not evidence and I adopt the figure that is more favourable to the defendant. According to the post-mortem report, he appears to have been in good health. In view of the nature of his business, I think he would probably have continued to work until his late sixties, but in selecting a multiplier. I take into account the possibility of ill health or death before retirement.

24. Madam Chan herself is 51 and clearly in robust health. I see no reason to limit the award on her account, except that I take into account the general vicissitudes of life and the fact of a lump sum payment.

25. For the reasons stated in Cookson v. Knowles ⁽³⁾, I take no account of prospective continuing post-trial inflation. In the circumstances, I think a multiplier of 7 is appropriate. Taking $1,800 as the probable present degree of dependency and, 4 years having passed since the accident, it is necessary to apply to this figure just 3 years purchase. This amounts to $64,800.

26. Under the Law Amendment $ Reform (Consolidation) Ordinance, I award $10,000 for loss of expectation of life, which will merge with the $144,000 awarded under the Fatal Accidents Ordinance. Special damages are proved in the sum of $3,610.

27. These figures must be scaled down by 75% to allow for the deceased's contributory negligence. There will thus be judgment for the plaintiff for $36,902 with costs. This sum will be apportioned as follows: to first plaintiff $29,902, to second plaintiff $1,000, to NG Kim-wah $1,000 and to NG Siu-wah $5,000, having regard to their respective ages and needs.

28. I award interest on the special damages at 4% from the date of the accident and on the damages under the Fatal Accidents Ordinance at 8% from the date of the issue of the writ.

Representation:

Mr. Wally Yeung (Liu, Chan & Lam) for both plaintiffs.

Mr. Pirie (Johnson, Stokes & Master) for defendant.

(1) (1933) 2 K.B. 461.

(2) (1946) 1 K.B. 114.

(3) (1978) 2 W.L.R. 978.

(4) (1954) 1 Q.B. 347.